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M (Care Order: Risk: Family Placement)
Factual and Procedural Background
This appeal concerns an infant girl, the Child, who is 18 months old and has lived with her mother since birth. The Child's father, a convicted sex offender, has never lived with them and was excluded from the family home by a Family Court order shortly after the Child's birth. The Local Authority issued care proceedings shortly after the Child's birth, seeking a care order and an interim care order, the latter granted by consent. At the final hearing, the Family Court Judge made a full care order, approving a plan to remove the Child from her mother and place her with the paternal grandparents (the Grandparents).
The mother appeals this order, supported by the father and the Children's Guardian. The Grandparents, who did not formally participate in the proceedings, have informally expressed opposition to the removal of the Child from her mother. The Local Authority opposes the appeal. Permission to appeal was granted by a senior judge who also stayed the care order, so the Child remains with her mother pending appeal.
The central issue was whether the mother would be able to protect the Child from the father in the future. The threshold criteria for making a care order were conceded by the parents.
Legal Issues Presented
- Whether the Family Court Judge's risk assessment regarding the father's potential to cause harm to the Child was flawed, particularly in relation to the mother's capacity to protect and the possibility of mitigating measures.
- Whether the Judge failed to undertake a proper comparative evaluation of the two placement options for the Child: remaining with the mother or placement with the Grandparents.
- Whether the Judge sufficiently considered the proportionality of the care plan relative to the assessed risk.
- Whether the Judge gave disproportionate weight to the views of the expert psychologist, thereby failing to adequately consider other welfare factors relevant to the Child.
Arguments of the Parties
Appellant's Arguments
- The Judge failed to adequately consider the mother's proven capacity to protect the Child, demonstrated over more than one year.
- The Judge did not properly assess the efficacy of mitigation steps and support that could be provided to reduce the risk of harm from the father while the Child remained with the mother.
- The Judge overlooked that the risk of harm was unlikely to arise for several years, during which time the mother could receive therapy and the parents' separation could be tested.
- The Judge failed to consider whether there was a realistic likelihood of sexual harm to the Child.
- The Judge did not conduct a true comparative evaluation of the placement options and erred in not receiving direct evidence from the Grandparents.
- The Judge did not properly consider the proportionality of the care plan in light of the risks.
- The Judge placed excessive weight on the expert psychologist's evidence, neglecting broader welfare considerations.
Children's Guardian's Arguments
- The Children's Guardian supported the appeal, adopting the Appellant's points, with particular emphasis on mitigation of risk and proportionality.
Local Authority's Arguments
- The Local Authority defended the Judge's decision, emphasizing the Judge's advantage in seeing and hearing witnesses firsthand.
- The Local Authority described the judgment as conscientious, thorough, and detailed, and argued that any imperfections in expression did not warrant overturning the decision.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Re H (Parents with Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59 | Judicial guidance on succinctness in judgments where threshold criteria are conceded and focus is on ultimate order. | The court agreed with the commentary that such cases can generally be resolved succinctly and selectively focused on relevant parts of the judgment. |
| Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civil 2762 | Framework for assessing proportionality, risk assessment, management, and mitigation in child placement cases. | The Judge applied this guidance in assessing the significant risk posed by the father and the proportionality of the care plan. |
| Re L-G (Children: Risk Assessment) [2025] EWCA Civ 60 | Questions to consider in risk assessment cases involving children. | The appellate court reproduced these questions to evaluate the Judge’s approach to risk and mitigation. |
| Re T (Children: Risk Assessment) [2025] EWCA Civ 93 | Structured approach to risk assessment and welfare considerations. | Used to frame the analysis of risk, mitigation, welfare factors, and proportionality in this appeal. |
| Re D (Child: No.3) [2016] EWFC 1 | Obligation on local authorities to provide support to enable children to remain with their parents where possible. | The Judge referenced this case regarding the positive obligation on the State under Article 8. |
| Re JW (Child at Home under a Care Order) [2023] EWCA Civ 944 | ‘Exceptionality’ test for making a care order where a child remains at home with a parent. | The Judge distinguished this case but was found to have insufficiently considered it in relation to the mother’s care. |
| Re H-W [2022] UKSC 17; [2022] 1 WLR 3243 | Requirement for side-by-side comparative evaluation of placement options for children. | The court held that the Judge failed to conduct a proper comparative evaluation as required by this authority. |
| Re N [2024] EWCA Civ 938 | Further authority on comparative evaluation and welfare analysis in child placement cases. | Supported the requirement for thorough comparative analysis which was not met in this case. |
| Re B [2013] UKSC 33; [2013] 1 WLR 1911 | Value of direct evidence from prospective carers in child placement cases. | Referenced to emphasize the procedural mis-step in not hearing evidence from the Grandparents. |
| Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2013] 3 FCR 293 | Degree of detail necessary in weighing positives and negatives of placement options. | Referenced to support the need for detailed comparative evaluation. |
| Re S-B [2009] UKSC 17 | Definition of ‘likelihood’ in risk assessment as a ‘real possibility’. | The court found the Judge could not properly conclude a likelihood of harm to the Child. |
| Re A (Application for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11; [2016] 1 FLR 1 | Significance of lies in relation to child welfare and protective systems. | Referenced to caution against overemphasizing parental dishonesty where protective systems remain effective. |
| Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 | General principles on appellate review of factual findings and judgments. | Relied on by the Local Authority to support the Judge’s findings. |
| Volpi & Anor v Volpi [2022] EWCA Civ 464 | Appellate principles on evaluation of evidence and judgments. | Also relied on by the Local Authority in defense of the judgment. |
| Piglowska v Piglowski [1999] 2 FLR 763 | Standards for appellate intervention in family cases. | Used by the Local Authority to support the correctness of the Judge’s decision. |
Court's Reasoning and Analysis
The appellate court carefully examined the Family Court Judge’s detailed and lengthy judgment, noting the extensive evidence and analysis conducted below. The Judge found the father to pose a significant and well-documented risk of sexual harm to the Child, which was uncontested on appeal. The Judge also found that the mother had not demonstrated sufficient protective capacity or insight into the risks posed by the father, and that the risk could not be mitigated effectively if the Child remained in her care.
However, the appellate court identified critical flaws in the Judge’s reasoning:
- The Judge failed to properly consider the effectiveness of protective measures already in place and those that could be implemented in the future to mitigate risk while the Child remained with the mother.
- The Judge did not adequately factor in the timing of the risk, which expert evidence suggested was unlikely to materialize for several years, allowing time for therapy and assessment of the parents’ separation.
- The Judge’s comparative evaluation of the two placement options was incomplete and procedurally unfair, as the Grandparents did not give evidence, and concerns about their insight into the father’s offending and their ability to protect the Child were not explored.
- The Judge gave disproportionate weight to the expert psychologist’s evidence, allowing it to dominate the welfare analysis and failing to sufficiently consider other welfare factors, including the Child’s strong attachment to her mother and the emotional impact of removal.
- The Judge underestimated the emotional harm the Child would likely suffer from removal and failed to adequately address the Article 8 rights engaged by removing the Child from her mother.
- The Judge’s decision lacked a clear demonstration of proportionality and necessity required for such a significant intervention, especially given the lack of a thorough side-by-side welfare evaluation.
The appellate court emphasized the importance of a holistic approach to welfare, proper procedural fairness including hearing from all parties with a significant interest, and a structured, balanced risk assessment considering mitigation and timing.
Holding and Implications
The appellate court ALLOWED THE APPEAL. It set aside the Family Court’s care order and replaced it with an interim care order, maintaining the exclusion order against the father. The case was remitted to the Family Court for further case management and possible re-hearing, with directions for the Local Authority to file an updated welfare assessment and placement proposals.
The direct effect is that the Child remains with her mother under interim arrangements pending further proceedings. The court did not make a final welfare determination but emphasized the need for a proper comparative evaluation and consideration of mitigation measures before any permanent removal from parental care is ordered.
No new precedent was established; the decision underscores established principles requiring proportionality, thorough risk and welfare assessments, and procedural fairness in public law child proceedings.
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